The Democratic sponsor of a bill forcing anyone with an open Wi-Fi connection to report illegal images--or pay fines of up to $300,000--says a recent Internet outcry over the legislation misses the point.

Rep. Nick Lampson, D-Texas
U.S. House of Representatives

Rep. Nick Lampson of Texas, who drafted the bill that the House of Representatives approved this week, said through a spokesman on Thursday that he didn't actually mean to target Americans who happen to have Wi-Fi access points at home. The legislation also covers social-networking sites, domain name registrars, Internet service providers, and e-mail service providers such as Hotmail and Gmail.

Lampson's spokesman, Trevor Kincaid, sent me this e-mail about the Securing Adolescents From Exploitation-Online Act, or SAFE Act:

It is NOT the intent of the SAFE Act to target Wi-Fi providers but
rather the entities that provide the internet to those conduits.

With that said--child pornography is illegal, grotesque, and has become
a global epidemic. The Internet serves as virtual hunting preserve for
pedophiles and predators to prey upon innocent children. So, while this
bill is not intended to impact the groups you reference, those groups,
all of us, have a civic and moral obligation to report these criminal
acts that exploit and traumatize children.

He responded to privacy concerns with this:

Since child pornography is illegal it is material that is
NOT protected by the first amendment. Therefore, the SAFE Act is not
infringing upon a person's civil liberties.

I wrote back:

You say that the "intent" was not to force Americans with open Wi-Fi
connections in their homes, but a court will typically not consider
congressional intent--it'll look at what the law says. Why does the
bill not exempt Wi-Fi and private individuals from its relatively strict
requirements?

Will you try to work with the Senate to tweak the language so it
doesn't cover WiFi connections and private individuals? Because you said that he did not mean to target WiFi networks, can I take your response to mean that inclusion of such language was a mistake that will be fixed? I mean, it wouldn't seem to be a major change--just the addition of one sentence or so.

Kincaid replied:

I never said Rep. Lampson "didn't mean to target WiFi." Rep. Lampson added teeth to pre-existing law in hopes of cracking down on a $5 billion a year child pornography business.

We are constantly discussing the bill as it moves through the Senate, but I cannot speculate whether or not any changes will be made to the House version. Mr. Lampson's goal is to stop the trafficking of child pornography on the internet without dissolving civil rights; this bill will take big strides to accomplish that goal.

So what exactly does the SAFE Act do? It doesn't mandate ongoing network surveillance. What it does require is that anyone providing Internet access who learns about the transmission or storage of information about illegal image must (a) register their name, mailing address, phone number, and fax number with the National Center for Missing and Exploited Children's "CyberTipline" and (b) "make a report" to the CyberTipline that (c) must include any information about the person or Internet address behind the suspect activity and (d) the illegal images themselves. (Note that some reporting requirements already apply to Internet access providers under current law.)

The definition of which images qualify as illegal is expansive. It includes obvious child pornography, meaning photographs and videos of children being molested. It also includes photographs of fully clothed minors in unlawfully "lascivious" poses, and certain obscene visual depictions including a "drawing, cartoon, sculpture, or painting."

Most reasonable adults, including home Wi-Fi providers or the Web sites affected by this legislation, can figure out what actual child pornography is. But when it comes to photographs of fully clothed minors in "lascivious" poses, and overly risque cartoon anime that might be "obscene" in one area of the country and permissible in another, it becomes trickier--especially when, legally, only a jury can determine whether an image violates local community standards.

The real problem, I think, is that Lampson probably drafted this legislation a little too hastily. It didn't go through the normal committee process and was rushed to the floor without the final text being posted until the day after the vote. That may be why its requirements apply to anyone providing an "electronic communication service" or "remote computing service"--terms that were clear back when the only Internet service providers were AOL or Netcom.

But now that anyone with a Wi-Fi connection (or any school, or library, or coffee shop) can be an ISP, it's not sufficient to borrow definitions written in the 1980s. That's one reason why the usual back-and-forth process of public hearings, disclosure, and debate can actually be helpful on occasion.

About the author

Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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